Friday, November 05, 2021

Ochoa v. Davis, No. 16-99008 (11-1-21)(Clifton w/Rawlinson & Collins). The 9th affirms denial of a capital petition. AEDPA deference cuts short consideration of both guilt and sentencing issues. One such issue was Brady. A witness, who had participated in one of the aggravating offenses (a prior sexual assault), testified for the State regarding the petitioner’s involvement in the murder. This witness allegedly had implicated himself  to three separate “jailhouse informants” that he was involved in the murder. The State Supreme Court held these statements should have been disclosed, but in light of the petitioner’s confession and other evidence, the statements were not material.

The decision is here:

US v. Rizo-Rizo, No. 20-50172 (10-29-21)(Bennett w/Paez & Callahan). For the misdemeanor offense of attempted illegal entry, 1325(a)(1), the 9th holds that knowledge of alienate is not an element of the offense. This is a circuit issue of first impression. The specific intent of “attempted entry” goes to whether the person specifically intended to enter the United States. See US v. Smith-Baltiher, 424 F.3D 913 (9th Cir. 2005). The 9th also distinguishes Rehaif, which construed the scope of “knowingly” as to the elements.

The 9th here takes the approach to regard the offense as a regulatory one, and no presumption of scienter applies. Supporting this too is that Congress had required specific intent in other provisions of 1325; and 1326 has been held to be regulatory.

A valiant appeal by Doug Keller and Michael Marks of the Federal Defenders of San Diego.

The decision is here: